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Tampering Case Analysis

The ultimate decision in this case — that Hays’ conduct satisfies the interstate commerce element of 18 U.S.C. 1365(a) — is correct, but the reasoning is unsound, and if taken to its logical conclusion, can lead to convictions in cases where the element would not be met, and dismissals where conviction should result.

Section 1365(a)(4) provides, "Whoever, with reckless disregard for the risk that another person will be placed in danger of death or bodily injury and under circumstances manifesting extreme indifference to such risk, tampers with any consumer product that affects interstate or foreign commerce . . . [shall] be fined under this title or imprisoned not more than ten years, or both."

Modern Commerce Clause jurisprudence enumerates three broad categories of activity that Congress may regulate under its commerce power. U.S. v. Morrison, 529 U.S. 598, 608, 120 S.Ct.1740, 1749 (2000); U.S. v. Lopez, 514 U.S. 549, 558 (1995).

First, Congress may regulate the use of the channels of interstate commerce. Id. This category is not implicated in the case at bar.

Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities (emphasis added)." Lopez, 514 U.S. at 558.

This is the category on which the court in the case at bar should have focused, as the statute is clearly within this category.

Hays was a doctor who took OxyContin for himself, and substituted placebos to his patients for whom it was intended. The OxyContin was clearly a "thing[] in interstate commerce," and therefore, Congress has authority to criminalize his tampering with it.

The court’s decision should have listed this category of commerce clause power, found that the statute fits into it, and affirmed Hays’ conviction.

Instead, the court’s analysis erroneously appears to assume that sec. 1365 falls within the third category of Congress’ Commerce Clause power: "Congress’ commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, … i.e., those activities that substantially affect interstate commerce. Lopez, 514 U.S. at 558-559.

The court never explicitly states that it is analyzing the third category of Congress’ commerce power, but that is the only logical conclusion for two reasons. First, that is the only one of the three categories to which the "supply and demand theory" as enunciated by the U.S. Supreme Court in Wickard v. Filburn, 317 U.S. 111 (1942), applies.

Second, that is the category of power at issue, when the government must prove that an "activit[y] substantially affect[s]" interstate commerce. The government need not make this showing when the statute falls within one of the first two categories of commerce power.

As noted, the supply and demand theory originates in Wickard. Under this theory, Congress can regulate economic activity, even though it is entirely intrastate, under its third category of power, and even though any given act will have no real effect on interstate commerce, because if the activity were repeated by many nationwide, the aggregated impact would be to substantially affect the supply and demand curve and interstate commerce.

Thus, in the case at bar, even though the 300 mgs. that Hays was injecting daily is an enormous amount for an individual, it is far too small to "substantially affect" interstate commerce, or affect the supply and demand curve. But, of course, if every doctor in America was doing it, the aggregate effect on the curve and interstate commerce, would be substantial.

In contrast, under the second category of Congress’ commerce clause power, the aggregate effects of an activity, and supply and demand curves, have no relevance.

Congress may regulate things in interstate commerce, regardless of how miniscule or nonexistent the effect on interstate commerce may be, and the government is not required to prove that the "activity" affects interstate commerce.

The statute itself makes clear that it is enacted pursuant to the second, rather than third, category of Commerce Clause power, by prohibiting tampering with "any consumer product that affects interstate or foreign commerce." To sustain convictions under statutes that fall within the third category, the government must prove that the activity affects interstate or foreign commerce.

Because Hays’ indisputably tampered with a product that affects interstate commerce, and thus was properly convicted, it is tempting to pretend that the Seventh Circuit has committed no error in (implicitly) upholding Hays’ conviction using third category analysis — no harm, no foul, as it were. But this temptation must be resisted, lest the court’s opinion be applied to defendants who should not fall within the statute’s ambit, and result in acquittal of those who should be convicted.

The U.S. Supreme Court clearly stated in Morrison, "While we need not adopt a categorical rule against aggregating the effects of any noneconomic activity in order to decide these cases, thus far in our nation’s history our cases have upheld Commerce Clause regulation of intrastate activity only where that activity is economic in nature (cites omitted)." Morrison, 529 U.S. at 613.

OxyContin is sufficiently addictive, that we may safely assume that a case is going to arise in which the victim’s OxyContin was not tampered with by his doctor (while it was still in the stream of interstate commerce, and thus subject to Congress’ second category of commerce power) or a nurse (as was the case in U.S. v. Cunningham, 103 F.3d 553 (7th Cir.1996)), but by a drug-addled family member (after it has left the stream of interstate commerce).

When that case arises, the court’s reasoning will apply just as equally to that family member as it does to Hays, even though it arguably should not. The court will conclude, as it did in the case at bar, "because of the [defendant’s actions], pharmacies in Illinois [or Wisconsin or Indiana] were required to order more OxyContin from Minnesota to replenish their supplies
. Under the supply and demand theory, this is enough to support a violation of sec. 1365(a)."

As in U.S. v. Moyer, 182 F.3d 1018 (8th Cir. 1999), because the OxyContin was manufactured in Minnesota, and the tampering in another, the court will find the product crossed a state line and the requisite "effect on interstate commerce" is met.

The problem when this hypothetical arises is that the defendant’s tampering with a family member’s prescription drugs, so that he may take them himself, is not an "economic activity," a prerequisite for an activity to fall within the third category. As the quote from Morrison above indicates, this category of power only permits regulation of activity "where that activity is economic in nature."

Tampering with prescription drugs, or any other consumer product is not "economic in nature," whether committed by a doctor like Hays, or a family member.

However, by affirming Hays’ conviction using third category commerce power analysis, rather than second category analysis, the court has created precedent that can easily be used to federalize a crime that may belong in state court. Arguments can be made on policy grounds both for and against application of the statute to the hypothetical family member, but the relevant question should be whether a consumer product that is no longer in the stream of commerce is still a "consumer product," within the meaning of the statute, rather than whether the product ever crossed a state line.

At the opposite end of the spectrum from the hypothetical drug-addled family member is Harry Lime, from the classic 1949 movie, "The Third Man."

Harry Lime, portrayed by Orson Welles, plays a racketeer who steals penicillin from a hospital, dilutes it to make it go further, and sells it on the black market. Officer Callaway describes the horrible crime toward the end of the movie as follows: "These were murders. Men with gangrened legs, women in childbirth. And there were children too. They used some of this diluted penicillin against meningitis. The lucky children died. The unlucky ones went off their heads. You can see them now in the mental ward. That was the racket that Harry Lime organized."

One need only recite these brief facts and their consequences to understand that, of course, Congress has power under the Commerce Clause to criminalize such behavior. And while Hays’ conduct is nowhere near as monstrous as Harry Lime’s, he nevertheless tampered with a product while it was still in the stream of interstate commerce, and can be punished for it in federal court, under the second category of Congress’ commerce power.

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Using the court’s third category commerce power analysis, however, Harry Lime could be immune from federal prosecution, if only he operated entirely in Minnesota.

Under the court’s analysis, the interstate commerce element would not be met, because nothing ever crossed a state line.

This would be contrary to the whole purpose of the Commerce Clause, the purpose of which is to authorize Congress to "regulate in the commercial sphere on the assumption that we have a single market and a unified purpose to build a stable national economy." Lopez, at 577.

Applying the second category of Commerce Clause power, it would be irrelevant whether any tampered product ever crossed a state line. The government would only have prove that OxyContin is a "consumer product that affects interstate commerce." There is a single national market for OxyContin; OxyContin was tampered with; therefore, the interstate commerce element would be satisfied.

We should eschew an interpretation of the Commerce Clause statute that would enable a Harry Lime to avoid prosecution for tampering with consumer products while they are in the stream of commerce, while convicting a drug addict who tampers with a family member’s prescriptions after they have left that stream.

Fortunately, the flaw can easily be remedied in future cases, merely by recognizing that Congress’ authority to enact sec. 1365(a) derives from the second category of commerce power — regulation of "things in interstate commerce," rather than regulation of "activities that substantially affect interstate commerce."

– David Ziemer

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David Ziemer can be reached by email.

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